Full Opinion

Third District Court of Appeal State of Florida Opinion filed May 13, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-0169 Lower Tribunal No. 99-21181 ________________ Zabariel Moss, Appellant, vs. The State of Florida, Appellee. An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Stephen T. Millan, Judge. Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Jonathan Tanoos and Gabrielle Raemy Charest-Turken, Assistant Attorneys General, for appellee. Before LINDSEY, HENDON, and MILLER, JJ. PER CURIAM. Zabariel Moss is serving forty years in prison for a homicide offense committed when he was a juvenile. In 2017, Mr. Moss filed a pro se motion to vacate his sentence pursuant to Johnson v. State, 215 So. 3d 1237 (Fla. 2017); Kelsey v. State, 206 So. 3d 5 (Fla. 2016); and Henry v. State, 175 So. 3d 675 (Fla. 2015). Mr. Moss argued he was entitled to resentencing under chapter 2014-220, Laws of Florida, given his juvenile status and the length of his sentence. The trial court denied the motion, in part, on the grounds that Mr. Moss had not been sentenced to life without parole. This timely appeal followed. On appeal, Mr. Moss asserted he was entitled to resentencing pursuant to Kelsey and Thomas v. State, 177 So. 3d 1275 (Fla. 2015), irrespective of the fact that his sentence was not a de facto life sentence. On January 4, 2019, the State moved this Court to hold Mr. Moss’s appeal in abeyance pending the Florida Supreme Court’s resolution of Pedroza v. State, 45 Fla. L. Weekly S93 (Fla. Mar. 12, 2020). Pedroza involved the exact same issue as involved herein, i.e., the constitutionality of a forty-year sentence for a second-degree murder committed as a juvenile. Mr. Moss did not join the State’s motion but acknowledged that Pedroza’s holding would resolve this case. We granted the State’s motion and held the appeal in abeyance. On March 12, 2020, the Florida Supreme Court issued its decision in Pedroza, which clarified Kelsey, receded from Johnson, and held that a juvenile offender is 2 only entitled to Eighth Amendment relief if he or she is serving a “a life sentence or the functional equivalent of a life sentence.” Pedroza, 45 Fla. L. Weekly at S95. The defendant in Pedroza did not seek rehearing and so the Court’s mandate issued on April 3, 2020. On April 17, 2020, we requested supplemental briefing addressing Pedroza. We agree with Mr. Moss’s commendable concession that Pedroza is on point with Mr. Moss’s case. Both cases involve the same offense and the same sentence. Accordingly, because Mr. Moss does not—and cannot—argue that a forty-year sentence constitutes a de facto life sentence, and does not otherwise distinguish his case from Pedroza, we affirm. Affirmed. 3